The 9th Circuit Court of Appeal on Tuesday declined a federal judge’s request to review a ruling last fall that called a Newport Beach ordinance regulating homes for recovering addicts “discriminatory.” That ruling gave sober home operators the go-ahead to sue the city, overturning an earlier trial court decision.

Several federal judges complained about the failure to rehear the case.

“The panel’s opinion…invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect,” said Judge Diarmuid O’Scannlain, who was joined in a written dissent by four other federal judges.

The city adopted in the ordinance governing group homes in 2008, following residents’ outcry over a surge in the number of the homes, particularly in West Newport. The ordinance permits unlicensed homes for recovering addicts, considered by law a protected class, in certain neighborhoods with city approval.

When drafted, the ordinance had included a provision to regulate vacation rentals, which was later scrapped, leading an appeals court judge Stephen Reinhardt to write “…the city’s purpose in enacting the ordinance was to exclude group homes from most residential districts and bring about the closure of existing group homes.”

Since 2007, the number of sober homes in the city has dropped from 73 to about 26, according to city and court records.

City spokeswoman Tara Finnigan said the city has three months to decide whether to petition the U.S. Supreme Court to overturn the appeals court ruling.

“Judge O’Scannlain supports the city’s position that the city didn’t do anything wrong because its regulations treat disabled individuals the same as similarly situated non-disabled individuals,” she said in a statement.

Attorney Steven Polin, who represents three sober home providers bringing suit against the city, said the 9th circuit panel made the right decision.

“The appeals court recognized that there was more than ample evidence that the city adopted the ordinance with discriminatory intent for the sole purpose of shutting down as many sober houses as possible in Newport, and to make it very, very difficult for new sober homes to be established,” he said.

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